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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________
Henniker District Court
No. 2003-628
THE STATE OF NEW HAMPSHIRE
v.

JOHN D. WIGGIN
Argued: July 15, 2004
Opinion Issued: August 26, 2004
Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the brief and orally), for the
State.

Law Office of Mark Stevens, of Salem (Mark Stevens on the

brief and orally), for the defendant.
GALWAY, J. The defendant, John D. Wiggin, was convicted
after a bench trial in the Henniker District Court (Scheffy, J.)
of driving under the influence of intoxicating liquor. See RSA
265:82, I(a) (Supp. 2003). He appeals the court's denial of his
motions to suppress and to dismiss. We affirm.

The record of the hearing supports the following facts. On

February 2, 2003, at approximately 1:30 a.m., Henniker Police
Officer Neal Martin responded to a burglar alarm call from a
market. Upon arriving at the market, he parked in front and
began investigating the cause for the alarm. He initially
checked the front and side doors of the market but found nothing
that would have activated the alarm. Because it had snowed
sporadically that night, leaving snow and slush on the ground, he
looked for tracks in the parking lot but found none.

The building housing the market also contained a restaurant,

which was about to close. The officer questioned the restaurant
patrons and employees as to whether they knew of any cause for
the alarm, but none did. Not yet having found the cause, the
officer called the owner of the market, sat in his cruiser facing
the storefront to keep an eye on it, and waited for the owner to
arrive.
While waiting in his unmarked cruiser, the officer saw the
defendant's car drive around to the back of the building and park
near a dumpster. He realized that this was not the owner of the
market, and he followed the car around the building. He parked
his cruiser behind the already stopped car and, to identify
himself as a police officer, flashed his blue lights.
The officer, who was in uniform, approached the car, and the
defendant rolled down his window. When the officer requested the
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defendant's identification, he immediately noted an odor of
alcohol, as well as the defendant's bloodshot, glassy eyes and
flushed face. The officer asked the defendant to step out of the
car to perform five field sobriety tests (FSTs), which the
defendant failed.
Based upon Officer Martin's observations and training, he
determined that the defendant was "impaired" by alcohol, placed
him under arrest, and transported him to the Henniker police
station. At the station, Officer Martin explained to the
defendant his administrative license suspension rights and
requested that he take a breathalyzer test. The defendant
refused the test and was charged with driving under the
influence. See id.

During trial, the defendant moved to suppress all evidence,

arguing that he was seized in violation of his State and federal
constitutional rights. Further, at the close of the State's
case, the defendant moved to dismiss the charges, arguing that
the evidence was insufficient to support a finding of guilt. The
court denied both motions and found the defendant guilty. See
id. This appeal followed.

Concerning his motion to suppress, the defendant argues that

he was seized upon the activation of the officer's blue lights,
and that his seizure was unconstitutional pursuant to the
protections of the Fourth Amendment of the United States
Constitution as well as Part I, Article 19 of the State
Constitution. Specifically, he argues that "the seizure was not
based on a reasonable articulable suspicion that he had committed
a crime."

Both parties agree that the officer's actions constituted a

seizure of the defendant. Whether the defendant was seized at
the moment the officer activated the blue lights, however, is
irrelevant because the defendant was already parked, and nothing
is alleged to have happened between the time that the officer
flashed his blue lights and the time when the defendant rolled
down his window to speak to the officer. The more relevant issue
is whether the seizure was lawful-that is, whether the officer
had reasonable, articulable suspicion that the defendant was
involved in criminal activity sufficient to justify the seizure.
See Terry v. Ohio, 392 U.S. 1, 20-21 (1968). We conclude that he
did.

We first address the defendant's claim under the State

Constitution, State v. Ball, 124 N.H. 226, 231 (1983), citing
federal opinions for guidance only, id. at 232-33. In reviewing
the trial court's ruling, we accept its factual findings unless
they lack support in the record or are clearly erroneous. State
v. Wallace, 146 N.H. 146, 148 (2001). Our review of the trial
court's legal conclusions, however, is de novo. Id.
To undertake an investigatory stop, a police officer must
have reasonable suspicion, based upon specific, articulable facts
taken together with rational inferences from those facts, that
the particular person stopped has been, is, or is about to be
engaged in criminal activity. State v. Turmel, 150 N.H. 377, 380
(2003); see Terry, 392 U.S. at 20-21. The suspect's conduct and
other specific facts must create a "significant possibility of
criminality," and the articulated facts must lead to somewhere
specific, not just to a general sense that this is probably a bad
person who may have committed some kind of crime. State v.
Vadnais, 141 N.H. 68, 70 (1996) (quotation omitted). To
determine the sufficiency of the officer's suspicion, we must
consider the facts he articulated in light of all of the
surrounding circumstances. See Turmel, 150 N.H. at 381.

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Here, the officer had reasonable, articulable suspicion to
seize the defendant. When the defendant's car first pulled into
the parking lot, Officer Martin was involved in an ongoing
investigation of a potential burglary. The officer was
investigating the alarm at about 1:30 a.m. He had checked the
building's doors and looked for tracks in the snow. At the
adjoining restaurant, he had questioned employees and patrons
concerning the cause for the alarm. Before the officer had
determined the cause of the alarm, the defendant's car pulled
into the parking lot, drove behind the building, and parked near
the dumpster. Looking at the totality of the circumstances, we
conclude that these case-specific, objective facts support a
finding that the officer had reasonable, articulable suspicion
that the defendant had been, was, or was about to engage in
criminal activity sufficient to justify the seizure of the
defendant. See id. at 380.
The Federal Constitution offers the defendant no greater
protection than does the State Constitution under these
circumstances. See id. at 382; Terry,

392 U.S. at 20-21. Accordingly, we reach the same result under

the Federal Constitution.
We next address the defendant's challenge to the sufficiency
of the evidence raised in his motion to dismiss. On appeal, the
defendant argues that the evidence presented at trial was
insufficient to support a finding that he was under the influence
of intoxicating liquor. Specifically, he argues that he failed
the tests not because of impairment by alcohol, but because of
physical impairments and poor road conditions. We disagree.
To prevail on a challenge to the sufficiency of the
evidence, the defendant must demonstrate that no rational trier
of fact, evaluating all of the evidence and its reasonable
inferences in the light most favorable to the State, could
conclude beyond a reasonable doubt that he had committed the
charged crime. State v. Parmenter, 149 N.H. 40, 43 (2002). In
order to prove the defendant guilty of driving while intoxicated,
the State was required to prove beyond a reasonable doubt that
the defendant drove or attempted to drive a vehicle upon a way
while he was "under the influence of intoxicating liquor." Id.
at 43-44 (quotation omitted); RSA 265:82, I(a). To prove that
the defendant was "under the influence of intoxicating liquor,"
the State "need only prove impairment to any degree."
Parmenter, 149 N.H. at 44.
Here, the following evidence was sufficient to find the
defendant guilty of driving under the influence. Officer Martin
testified that he saw the defendant drive on a way, and when he
approached the defendant, he noticed an odor of alcohol and
observed the defendant's flushed face and bloodshot, glassy eyes.
By the defendant's own admission, he had consumed a few beers-
one as late as 11:00 p.m. The officer also testified that the
defendant failed all five FSTs. Specifically, the officer
testified that in administering the Horizontal Gaze Nystagmus
(HGN) test, after explaining to the defendant not to move his
head and to follow the pen with his eyes, the defendant moved his
head on the first two attempts. After explaining the test a
third time, the officer noted impairment when the defendant
performed the test. During the alphabet test, in which the
officer asked the defendant to recite the alphabet from E to T,
the defendant only recited to K and then confused the letters.
In the counting test, the officer asked the defendant to count
backwards from forty-five to twenty-three. The officer testified
that the defendant lost count somewhere in the twenties and that
he "rambled a little bit with numbers." The officer then
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demonstrated the one-legged stand test and explained to the
defendant that he should stand with one foot off the ground about
six inches, keep his hands to his side, look down at his foot,
and count to thirty until he was told to stop. The defendant was
unable to keep his foot off the ground, used his arms for
balance, and put his foot down after only three or four seconds.
Finally, during the Romberg balance test, the defendant was
instructed to stand with his hands by his side, tilt his head
back slightly, and close his eyes for an estimated thirty
seconds. The defendant opened his eyes within approximately five
seconds and swayed while his eyes were closed. After the
defendant was arrested and taken to the police station, he
refused to submit to a blood-alcohol test.

The defendant testified to a number of facts to support his

argument. He claimed, among other things, that difficulty with
contact lenses and snowy conditions affected his ability to
perform the HGN test; that ankle and knee problems and deep snow
affected his ability to perform the balancing tests; that the
officer told him to stop on the alphabet test; and that the
officer's instructions concerning the counting test confused him.
Even if these facts would tend to rebut the State's evidence and
support the defendant's position that he was not impaired by
alcohol, any conflicts in the evidence are for the fact finder to
resolve. See id.

We conclude that the evidence was sufficient such that a

rational trier of fact could conclude beyond a reasonable doubt
that the defendant was guilty of driving under the influence.

Affirmed.

BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

concurred.

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